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October 31, 1997POTW Superfund Liability Issue May Receive Attention As Boehlert Plans CERCLA Reauthorization Markup
In September 1995, a federal appeals court held that a POTW was liable under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) for groundwater contamination caused by hazardous waste discharged by an industrial user into the sewer system that may have escaped from the POTW collection system (Westfarm Associates Limited and International Fabricare Institute v. Washington Suburban Sanitary Commission). Both prior to and after the decision was handed down, AMSA identified several options for amending Superfund to provide POTWs with protection from this type of liability. Among the options identified were amendments to Superfund's definitions of "facility" and "owner or operator" to clearly exempt municipal wastewater treatment facilities. Either option would fully protect POTWs from unwarranted Superfund liability. AMSA chose to pursue a change to the definition of "owner or operator," based on conversations held with members, counsel, and Capitol Hill staff in 1995 and early 1996.
Recent developments, including the introduction of H.R.2727, the CERCLA of 1980 Amendment, by Water Resources and Environment Subcommittee Chair Representative Sherwood Boehlert (R-NY), have prompted a change in AMSA's approach focusing on amendment to the definition of "facility."
On Wednesday, October 29, the House Transportation & Infrastructure Subcommittee on Water Resources & Environment held its first hearing on reauthorization of Superfund. Subcommittee Chair Sherwood Boehlert may schedule a markup of H.R. 2727 as early as Wednesday, November 5, 1997. Staff members for Congressman Boehlert have stated his support for including AMSA's amendment protecting POTWs from Superfund liability in legislation.
AMSA Urges Boehlert To Ensure POTW Protection
On October 29, AMSA sent a letter to Congressman Boehlert commending his efforts to reauthorize CERCLA but urging him to clarify Congressional intent and include in his legislation an amendment to exclude POTWs from liability as defined in §212(2) of the Federal Water Pollution Control Act.
The letter highlights Congress' regulation of POTWs under the Clean Water Act and its historical intent to protect them from exposure to liability under the Resource Conservation and Recovery Act and Superfund. AMSA's correspondence notes that the proposed legislation is "silent with regard to an emerging issue faced by POTWs," and "to not correct the Westfarm interpretation is to expose municipal sewer systems nationwide not only to significant liability, but invite real responsible parties to try to recover their Superfund clean up costs from these essential public agencies and the ratepayers who support their daily operation."
AMSA Encourages Members To Act On Superfund Reauthorization
Today, AMSA forwarded member agencies with Representatives on the House Transportation & Infrastructure Subcommittee on Water Resources & Environment a sample letter to use to contact their Representatives about this issue. Involved member agencies were asked to urge their Representatives to support the AMSA amendment.
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